Trust & Fiduciary

Trust Management & Administration

The manner in which trustees are obliged to carry out their fiduciary duties is the core of the trust. The trustees owe duties to the beneficiaries in relation to the trust fund. The Trusts and Trustees Acts, provides for limited situations in which trustees who are incapable of performing their duties can be removed from office and other trustees may be appointed in their stead. There are various duties a trustee may owe during his tenure in office, and the terms of the trust must always be taken into consideration when administering and managing a trust. The core duties of a trustee in the administration and management of a trust thereof include inter alia:

(1) The duties on acceptance of office relating to the need to familiarise oneself with the terms, conditions and history of the management of the trust.

(2) The duty to obey the terms of the trust unless directed to do otherwise by the court.

(3) The duty to safeguard the trust assets, including duties to maintain the trust property, as well as to ensure that it is applied in accordance with the directions set out in the trust instrument.

(4) The duty to act even-handedly between beneficiaries, which means that the trustees are required to act impartially between beneficiaries and to avoid conflicts of interest.

(5) The duty to act with reasonable care, meaning generally a duty to act as though a prudent person of business acting on behalf of someone for whom one feels morally bound to provide.

(6) Duties in relation to trust expenses.

(7) The duties of investment, requiring prudence and the acquisition of the highest possible rate of return in the context.

(8) The duty to distribute the trust property correctly.

(9) The duty to avoid conflicts of interest, not to earn unauthorised profits from the fiduciary office, not to deal on one‘s own behalf with trust property on pain of such transactions being voidable, and the obligation to deal fairly with the trust property (self dealing).

(10) The duty to preserve the confidence of the beneficiaries, especially in relation to Chinese wall arrangements.

(11) The duty to account and to provide information.

(12) The duty to take into account relevant considerations and to overlook irrelevant considerations, failure to do so may lead to the court setting aside an exercise of the trustees‘ powers.